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EXHIBIT 10.12
VALUE-ADDED RESELLER/OEM AGREEMENT
This Agreement is made effective June 26, 1997 between ADP, Inc. ("ADP")
with offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and Sagent
Technology, Inc. ("SAGENT" or "Sagent"), with offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The parties hereby agree that, after
execution of this agreement ("Agreement") by an authorized representative of
each of the parties, the terms and conditions of this Agreement shall apply to
the use and distribution by ADP of the Products (as defined below). All
capitalized terms used herein and not otherwise defined in this Paragraph or
elsewhere in the Agreement are defined in Section 1, Definitions.
1. DEFINITIONS
"Application" means a value-added application computer program
which is developed by ADP and marketed by ADP's National Accounts Division of
Employer Services.
"Basic Maintenance" means SAGENT's maintenance program pursuant
to which SAGENT shall provide to ADP receipt of all improvements, error
corrections, enhancements, modifications, updates, new versions (including,
without limitation, SAGENT's version 2 that works in accordance with the
documentation previously provided by SAGENT to ADP in respect thereof ("SAGENT
2")), and new releases of the Products (other than those designated as new
products by SAGENT), and support for the Product(s) and for all deliverables
developed by Sagent as described in Section 5(e) hereof, for a fee described in
Section 8 hereof, payable in advance. For purposes of clarification,
enhancements to functionality included in the integrated Data Mart Solution are
included in Basic Maintenance. SAGENT reserves the right, in its sole
discretion, to make non-material changes to the form and content of its Basic
Maintenance from time to time and will provide ADP with a sixty (60) day advance
notice of any such non-material change(s). As used in this Agreement, a
"non-material" change shall consist of change of an administrative or otherwise
non-substantive nature, not having an adverse effect upon a Solution, an
Interface or an Application previously effected, or a Solution being undertaken
at the time of such change, or upon the value, performance or functionality of
the maintenance, support or Product being provided, as the case may be. No
consent by ADP shall be required for changes to the maintenance services
provided by SAGENT to customers of SAGENT other than ADP.
"Confidential Information" of a party means such party's
technical, business, marketing, financial or customer information, drawings,
specifications, designs, records, correspondence or other information disclosed
by such party in relation to this Agreement. The Product(s) shall be
Confidential Information of Sagent, subject to the remainder of this paragraph.
The Applications and any intellectual and/or proprietary rights therein,
including, without limitation, any patent, copyright, trademark, service ▇▇▇▇,
logo, and trade secrets therein shall be Confidential Information of ADP,
subject to the remainder of this paragraph. A party's "Confidential Information"
does not include information (i) already in the public domain prior to the
execution of this Agreement, or which enters the public domain, other than by
unauthorized acts of the party receiving such information (the "Recipient"),
(ii) in the rightful possession of the Recipient prior to the execution of this
Agreement, or (iii) which is independently developed by the Recipient without
use of the disclosing party's Confidential Information or in violation of the
terms of this Agreement.
"Effective Date" means the date set forth in this first paragraph
of this Agreement.
"End User" means ADP customers who have licensed a Solution and
who are entitled to use Product(s) in connection therewith.
"End User Agreement" means the ADP standard End User software
license agreement, as modified by ADP from time to time, which specifies the
terms and conditions by which an End User may use Products. The End User
Agreement will be in effect between ADP and its End Users. ADP shall be entitled
to modify the End User Agreement from time to time provided that the End User
Agreement shall at all times contain such provisions that (i) place
confidentiality restrictions on the Products; (ii) prohibit reverse engineering
or disassembling of the Products; and (iii) reserve all intellectual property
rights not expressly granted thereunder.
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"Export Laws" means all export laws, administrative regulations,
and executive orders of any applicable jurisdiction relating to the control of
imports and exports of commodities and technical data, including, without
limitation, the U.S. Department of Commerce.
"Initial Term" shall have the meaning ascribed to such term in
Section 9(a) hereof.
"Level 1 Support" means SAGENT's support program that provides
telephone support during SAGENT's normal business hours, and Basic Maintenance
for Products, as more fully described in Section 5 herein.
"Level 2 Support" means SAGENT's support program that provides
twenty four hour per day and seven day per week telephone support, and Basic
Maintenance for Products, as more fully described in Section 5 herein.
"Maintenance Term" shall refer to a period for which ADP shall be
entitled to Basic Maintenance, ▇▇▇▇▇ ▇ Support and Level 2 Support. The first
Maintenance Term and second Maintenance Term, if any, shall be for an eighteen
(18) month period, and thereafter each succeeding Maintenance Term, if any,
shall be for a twelve (12) month period.
"Price List" means the SAGENT then current corporate price list
in effect at the time ADP orders Products from SAGENT.
"Product" or "Products" mean Sagent Products (in object code form
only) outlined in Schedule A and B and licensed hereunder in accordance with
this Agreement, including improvements, error corrections, enhancements,
updates, new versions and new releases provided to ADP hereunder.
"Quarter", or "quarter" means a calendar quarter. For purposes of
this Agreement, the first Quarter shall mean that Period commencing July 1, 1997
and ending September 30, 1997, and all subsequent Quarters shall follow
sequentially therefrom.
"Solution" means the combination of an Application and a Product.
"User Documentation" means the then current SAGENT user manual(s)
and other written materials on the proper installation and use of, and which are
normally distributed with, the Products. Sagent represents to ADP that it has
provided to ADP an up-to-date copy of the User Documentation.
2. APPOINTMENT OF ADP; RELATIONSHIP OF THE PARTIES
(a) SAGENT hereby appoints ADP as an authorized, non-exclusive
Value-Added Reseller. A "Value-Added Reseller" or "VAR" develops, owns and
licenses, to one or more End Users, one or more value-added Applications in
conjunction with a Product copy. A VAR licenses its Application with each
Product copy it distributes.
(b) The relationship between the parties shall be that of VAR
licensing products and purchasing services as an independent contractor from
SAGENT and reselling and sublicensing to End Users. ADP and its employees are
not agents or representatives of SAGENT for any purpose and have no power or
authority to represent, act for, bind or commit SAGENT.
3. ADP'S RIGHTS, REPRESENTATIONS AND OBLIGATIONS
(a) Subject to the terms and conditions herein, SAGENT hereby
grants and ADP hereby accepts (i) a worldwide, non-exclusive, nontransferable
(except as otherwise provided herein), perpetual, royalty-free right and license
to use the Products for internal use only by ADP's National Accounts Division or
any successor division to ADP's National Accounts Division to develop
Applications and Solutions, and to provide support and other services to End
Users, and for its other internal purposes; (ii) a worldwide, non-exclusive,
nontransferable (except as otherwise
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provided herein), perpetual, royalty-bearing right and license to copy,
distribute, license, display, sell, and market Product copies and User
Documentation for use solely as part of a Solution; (iii) a worldwide
non-exclusive nontransferable (except as provided herein), perpetual,
royalty-free right and license to use in unaltered form the SAGENT trademarks,
service marks or marketing logos solely to promote the Products, Applications or
Solutions, provided ADP obtains SAGENT's prior written approval for each new
usage. In addition to the foregoing, Sagent hereby grants to ADP a worldwide
non-exclusive, nontransferable (except as otherwise provided herein), perpetual,
royalty-bearing right and license to copy, distribute, license, display, sell
and market Add-On Components as described in Schedule B; and (iv) the right and
license to sublicense to End Users Product copies and User Documentation for
internal use solely as part of a Solution. SAGENT retains all title to and,
except as unambiguously licensed herein, all rights, including all intellectual
property rights to the Products, and all copies and derivative works thereof (by
whomever produced) other than interfaces, translations, applications and
intellectual property used to create Applications or Solutions, and any other
derivative work created by or on behalf of ADP in accordance with the terms of
this Agreement. ADP shall retain all title, rights and interest to all
interfaces, translations, augmentations, Applications and intellectual property
used to create the foregoing, and any other derivative work created by, for or
on behalf of ADP. If ADP desires to use additional Sagent products, or desires
to distribute additional Sagent products, both parties may execute additional
Exhibits and ADP shall pay to Sagent the applicable and then-current license
fees and royalty as set forth in the Price List. Any fees contemplated in the
immediately preceding sentence shall not exceed [*]% of the then current list
price for the applicable Sagent software. Upon payment of the applicable fees
for each Product copy as set forth in Section 8(a)(ii) herein, ADP's
royalty-bearing right and license as granted herein shall be fully paid up for
such Product copy.
(b) Sagent will supply up to thirty-five (35) sets of its
Products, including documentation, for use pursuant to Section 3(a)(i) above at
no additional charge. ADP's National Accounts Division of Employer Services may
license additional Products in sets of twenty-five (25), including User
Documentation, for internal use at a cost of $[*] per Product set. Sagent shall
provide to ADP a set of Product master disks, and hereby authorizes ADP to use
the same to make Product copies for purposes consistent with Section 3(a)(ii)
above. Sagent shall provide to ADP electronic copies of User Documentation and
hereby authorizes ADP to incorporate the User Documentation into ADP's Solutions
and ADP's documentation pertaining to the Solutions.
(c) ADP shall not (i) distribute the Product copies on a stand
alone basis, (ii) distribute Product copies in any way except as part of a
Solution, (iii) except under the circumstances contemplated in Section 10 hereof
or under the Escrow Agreement, modify or alter the source code of the Products
or Product copies in any way, or (iv) use any SAGENT trademark or trade name in
a way that implies ADP is an agency or branch of SAGENTs.
(d) ADP agrees not to resell, distribute or sublicense Products
or Product copies to third parties other than End Users, except where such third
parties are approved in writing in advance by SAGENT, such approval not to be
unreasonably withheld.
(e) ADP may make up to ten (10) back-up copies of Products used
internally to develop Applications, develop Solutions and or for demonstrations.
(f) ADP shall ensure that the End User Agreement in electronic or
hard copy form accompanies each Product copy distributed by ADP. In addition,
ADP shall perform any other actions reasonably requested by Sagent to assure
adequate protection of SAGENTs interests in its intellectual property rights
contained in the Product(s) and Product copies. ADP shall not distribute or
sublicense Products pursuant to mass-market or "shrink-wrap" licenses in those
jurisdictions with respect to which ADP has been advised by legal counsel to ADP
that such licenses are not enforceable. The provisions of the preceding sentence
shall not impair the rights of ADP or End Users in respect of Products
distributed or licensed prior to the receipt of such advice by legal counsel.
(g) The Product, Product copies and all related documentation are
protected under copyright and trade secret laws and contain proprietary
information of SAGENT and its licensers. ADP shall abide by the terms of any
proprietary notices or markings, and shall use the documentation and the Product
only for the purposes contemplated by this Agreement, and shall not disclose to
others or reproduce the Product (except as specifically permitted under this
Agreement), unless specifically authorized by SAGENT or required by law, or
relevant in any legal proceeding between
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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the parties, and shall be liable for all loss or damage to SAGENT from any
failure to so abide or from any unauthorized disclosure in violation of this
Section 3(g) and Sections 3(c) and 3(d), and Article 4, of the Product, Product
copies, or related documentation by ADP or its agents. ADP shall not translate
any portion of the Product or Product copies or associated documentation into
any other format or language without the prior written consent of SAGENT. In the
event such translation is made by ADP, ADP shall own all rights to each
translation but shall grant to SAGENT a non-exclusive, royalty free license to
such translation.
(h) ADP shall promptly notify SAGENT of any actual or suspected
unauthorized use or disclosure of the Confidential Information received from
SAGENT, of which it becomes aware and shall provide reasonable assistance to
SAGENT (at SAGENT's expense) in the investigation and prosecution of
unauthorized uses or disclosure.
(i) Except as specifically permitted by this Agreement, ADP shall
not directly or indirectly (i) use any Confidential Information of SAGENT to
create any computer software program or user documentation which is
substantially similar to any Product; (ii) reverse engineer, disassemble or
decompile, or otherwise attempt to derive the source code for, any Product;
(iii) encumber, timeshare, rent or lease the rights granted by this Agreement;
(iv) copy, manufacture, adapt, localize, port or otherwise modify any Products
or other SAGENT Confidential Information or allow any agent or authorize any End
User of ADP to engage in similar conduct.
(j) ADP does not have, and shall not claim that it has, any right
in or to any of the Products or the Confidential Information received from
SAGENT other than as specifically granted by this Agreement.
(k) Any and all obligations of SAGENT to provide the Products, as
well as any technical assistance, will be subject in all respects to such United
States laws and regulations as will from time to time govern the license and
delivery of technology and products abroad by persons subject to the
jurisdiction of the United States, including the Export Administration Act of
1979, as amended, any successor legislation, and the Export Administration
Regulations issued by the Department of Commerce, Bureau of Export
Administration. ADP warrants that it will not export or reexport the Product,
Product copies, any Confidential Information or a Solution, or technical data
related thereto, except in conformity with such laws and regulations. ADP agrees
that unless prior written authorization is obtained from the Bureau of Export
Administration or the Export Administration Regulations explicitly permit the
reexport without such written authorization, it will not export, re-export, or
transship, directly or indirectly, the Product, Product copies, any of Sagent's
Confidential Information or a Solution to country groups S or Z (as defined in
the export Administration Regulations), or to any other country as to which the
U.S. Government has placed an embargo against the shipment of products which is
in effect during the term of this Agreement.
(l) If at any time SAGENT determines that the laws of any country
other than Canada, U.S., Mexico, Benelux or U.K. are or become insufficient to
protect SAGENT's intellectual or proprietary rights in the Products, SAGENT may
notify ADP in writing as to such determination and, unless ADP disagrees with
such determination, ADP shall discontinue its distribution of Product(s) in such
country within thirty (30) days from the date of Sagent's written notice to ADP.
In the event that ADP disagrees with Sagent's determination, it shall so notify
Sagent. At Sagent's option, Sagent may institute arbitration proceedings as
described in Subsection (m) below to resolve any dispute pertaining to the
question whether the laws of any country are or become insufficient to protect
SAGENT's intellectual of propriety rights in the Product(s). Notwithstanding the
foregoing, and notwithstanding the results of such arbitration proceeding, ADP
shall be entitled to fulfill all existing contractual obligations in such
country. ADP shall use reasonable efforts to abide by this restriction in any
country the subject of a notification by Sagent as provided above and (i) not
disputed by ADP, or (ii) the subject of an arbitration proceeding pursuant to
which a determination was made that such country's laws are not sufficiently
protective as alleged by Sagent. As of the date of this Agreement, no country is
the subject of such distribution restrictions.
(m) Except as may otherwise be provided herein, in the event of
any disputes between ADP and Sagent relating to the question described in the
third sentence of subsection (l) above, a representative designated by each of
the parties shall meet with each other within seven days of the request of
either party for such meeting, and shall engage in good faith negotiation to
resolve such dispute. In the event that after such seven (7) day period, the
parties have not resolved such dispute, either party may institute arbitration
proceedings pursuant to the Commercial Rules of
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the American Arbitration Association then in effect at the time of the
arbitration. The arbitration proceedings shall be held in Atlanta, ▇▇▇▇▇▇ before
a panel of three arbitrators. Each party shall select an arbitrator from the
current listing of arbitrators registered with the American Arbitration
Association. The two arbitrators so selected shall within seven (7) days of such
selection mutually agree upon a third arbitrator registered with the American
Arbitration Association. In the event the two arbitrators are unable to agree
upon the third arbitrator, either party may request the president of the
American Arbitration Association to appoint the third arbitrator and the
decision of the president shall be final and binding upon the parties. The
arbitral award shall be issued within thirty (30) days following the arbitration
hearing, shall be in writing and shall be binding upon the parties.
(n) This provision applies to all Products and Product Copies
acquired directly or indirectly by or on behalf of the United States Government.
The Product and Product Copies are commercial products, licensed on the open
market at market prices, and were developed entirely at private expense and
without the use of any U.S. Government funds. If the Product or Product Copies
are supplied to the Department of Defense, the U.S. Government acquires only the
license rights customarily provided to the public and specified in this
Agreement. If the Product or Product Copies are supplied to any unit or agency
of the U.S. Government other than the Department of Defense, the license to the
U.S. Government is granted only with restricted rights. Use, duplication, or
disclosure by the U.S. Government is subject to the restrictions set forth in
subparagraph (c) of the Commercial Computer Software Restricted Rights clause of
FAR 52.227-19.
(o) ADP may permit properly licensed End Users to allow access
and use of Products to those entities providing services for such End Users
("Outsourcers"), whether in connection with a service bureau, facilities
management, outsourcing or other arrangement; provided, however, that such
Outsourcers may use the Products only as part of a Solution and only pursuant to
the applicable agreements entered into between such Outsourcers and End Users
("Outsourcing Agreements"), and not for the benefit of any third party. An
Outsourcers right to access and use Products shall expire upon the termination
or expiration of the applicable Outsourcing Agreements or End User Agreement,
whichever is earlier. By way of example (and not in limitation of the
foregoing), any such third party outsourcer shall be permitted to:
(i) access and execute the solution, including, without limitation, all
related software tools, at any location on behalf of the End User;
and
(ii) have access to a demonstration copy of the Products as part of the
Solution.
4. CONFIDENTIALITY
(a) Except as specifically allowed in this Agreement, neither
party shall use or disclose any Confidential Information of the other party,
except as required by law, regulation or court order. A party receiving
Confidential Information from the other shall use the same degree of care to
protect that Confidential Information as it uses to protect its own Confidential
Information, but shall in any event use reasonable care. Within fifteen (15)
days of the request of the disclosing party (which requests may not be made not
before the termination of this Agreement and all licenses granted herein, if
Sagent is the disclosing party), and in its sole discretion, the receiving party
shall either return to the disclosing party originals and copies of any
Confidential Information and all information, records and materials developed
from them by the receiving party (which shall not include the Applications or
related materials, if ADP is the receiving party), or destroy the same. Subject
to the exception set forth in the first sentence of this subsection (a) of
Section 4, and to the provisions of Section 12(k) of this Agreement, either
party may disclose only the existence, but not the contents, of this Agreement
without the prior consent of the other party, except that the contents may be
disclosed to parent companies or other controlling entities, and to financial or
legal advisors. Notwithstanding the foregoing, it is understood that ADP shall
be entitled to disclose to third parties such information pertaining to this
Agreement as is necessary to effectuate the commercial intentions of this
Agreement. By way of example and not in limitation of the foregoing, ADP shall
be entitled to disclose that it is an authorized value added reseller of SAGENT.
The parties acknowledge that ADP is in the business of developing and licensing
computer software applications, and agree that nothing in this Agreement,
including this Section 4(a), shall preclude or limit ADP's rights to develop
other applications, or applications similar to the Products, as long as ADP does
not use Sagent's Confidential Information to do so.
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(b) The parties acknowledge that money damages will not be an
adequate remedy if this section is breached and therefore, either party may, in
addition to any other legal or equitable remedies, seek an injunction or similar
equitable relief against such breach.
5. TRAINING AND SERVICES
(a) ADP will provide first line support for the Products to End
Users. Such support shall include, without limitation, receipt of calls, problem
and question intake, installation assistance, problem identification and
assistance, efforts to create repeatable demonstrations of reported Product
errors, and, if applicable, the replacement of any defective media or
distribution of updates. SAGENT shall have no obligation to furnish any
assistance, information or documentation to any third party.
(b) In consideration of ADP's payment of applicable fees set
forth in Section 8 herein, Sagent agrees to provide to ADP Basic Maintenance;
and Level 1 Support and Level 2 Support in accordance with the terms and
conditions set forth in Sagent's Premier Support Package, a copy of which is
attached hereto as Schedule C hereto and incorporated into this Agreement by
reference. Pursuant to Sagent's Premier Support Package, Sagent shall provide
second level support and maintenance that will enable ADP to perform support and
maintenance for its customers. Sagent will provide telephone consultation to ADP
with respect to any customer questions which ADP cannot adequately answer, and
will provide bug and error fixes, work around, and updates in accordance with
the response guideline below, or, if not related to a reported problem, as they
become available. Without limitation of the other provisions hereof, to the
extent Sagent provides an error correction through a temporary fix (which shall
at a minimum consist of sufficient programming and operating instructions to
implement the error correction), Sagent shall include the error correction
promptly in a subsequent release of the Product. From time to time, but in no
event less frequently than once per twelve (12) months, Sagent shall issue to
ADP new releases containing error corrections and other modifications and
enhancements. Sagent shall provide reasonable assistance to help ADP install and
operate each new release. Sagent agrees that the warranty obligations set forth
in Section 6(a)(iv) shall remain in effect throughout the Maintenance Terms (as
defined herein).
SAGENT shall assign a severity level in accordance with the
standards set forth in Schedule C to each reported Product problem or question,
and confirm with ADP the severity level so assigned, and SAGENT's efforts to
answer each such problem or question shall be commensurate with such severity
level. In the event that there is a disagreement between the parties over the
severity level assigned to a problem, the dispute shall be escalated to senior
management of both parties for resolution. SAGENT shall resolve "severity level
one" problems or questions within one (1) business day, "severity level two"
problems or questions within two (2) business days, and other problems or
questions within five (5) business days. ADP shall provide such reasonable
assistance to SAGENT as SAGENT may reasonably require for the performance of its
obligations pursuant to this Section 5(b).
(c) SAGENT will provide the following training, in each case to
occur in Atlanta, Georgia unless otherwise mutually agreed by the parties
hereto:
Customer Support: Sagent will train two ADP Customer
Support Representatives to provide first line support for Sagent
Products. Sagent will hold a class at a time and location convenient to
ADP to effect such training.
Sales Training: Sagent will provide two half day sales
training courses to ADP's APM's, the first to occur in July 1997 and the
other to take place in August 1997.
Basic Training: Sagent will teach one two day course in
Atlanta for up to twelve (12) developers, as designated by ADP.
Train The Trainer Program: Sagent will train such ADP
trainers designated by ADP in how to train ADP customers in the
implementation, administration and maintenance of Sagent Products. This
training will include one "class mentoring" of the first ADP taught
course, by a Sagent certified trainer. This will be held in October 1997
or at another time mutually agree upon.
Advanced Training Course: Sagent will provide one advanced
class for two ADP developers in July 1997 or at another time mutually
agreed upon.
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(d) If ADP desires to contract with Sagent for additional
support, installation, training, or any other need, Sagent will provide
installation support and training classes for $[*] per day, plus reasonable
expenses. All other support is offered at current and prevailing rates.
Sagent will assist ADP in its first four (4) ADP sales
opportunities at no cost to ADP. Such assistance by Sagent will include
participation in sales calls and demonstrations.
(e) Development:
ADP agrees to pay Sagent $[*], at the time of delivery, for
the delivery to ADP of SAGENT2 and of the items listed in items 1 and 2
hereinbelow (the "Deliverables") before June 30, 1997.
1) Support for Centura SQL databases as Data Sources.
2) Assistance in completing departmental security for the SAGENT
Datamart Solution.
The Deliverables shall conform to the specifications set forth in
Attachment B hereto. SAGENT2 shall contain, without limitation, such features
which conform to the specifications set forth in Attachment C hereto.
Any other mutually agreed upon engineering work to be performed
by SAGENT for ADP will be done on a time and materials basis as a mutually
agreed upon rate.
Pursuant to Sagent's Basic Maintenance obligations, Sagent shall
maintain and support the Deliverables and ensure compatibility of the
Deliverables on an ongoing basis with all future Product releases.
Notwithstanding the provisions of Section 3(a) hereof, is
expressly agreed that the Deliverables shall belong jointly to Sagent and ADP
and shall be considered the joint property of Sagent and ADP for purposes of
this Agreement. To the extent that ADP is not the joint owner of the
Deliverables, Sagent in consideration of $[*] and other good and valuable
consideration the receipt and adequacy of which hereby are acknowledged, hereby
irrevocably assigns to ADP, its successors and assigns, (i) joint rights, title
and interests in and to the copyrights of the Deliverables and all renewals and
extensions of the copyrights that may be secured under existing or future laws,
and (ii) joint rights, title and interests in all other property rights in the
Deliverables. To the extent that Sagent is not the joint owner of the
Deliverables, ADP, in consideration of $[*] and other good and valuable
consideration the receipt and adequacy of which hereby are acknowledged, hereby
irrevocable assigns to SAGENT, its successors and assigns (x) joint rights,
title and interest in and to the copyrights of the Deliverables and all renewal
and extensions of the copyrights that may be secured under existing or future
laws, and (y) joint rights, title and interest in all other property rights in
the Deliverables. Each party shall, upon request by the other party hereto and
at the other party's expense, promptly execute, acknowledge or deliver any
documents or instruments deemed reasonably necessary by the other party to
document, enforce, protect or otherwise perfect such other party's copyright and
other interests in the Deliverables. Neither party hereto shall have the right
to license or distribute the Deliverables, without the other party's consent,
except that ADP shall be permitted to license and otherwise distribute the
Deliverables as part of a Solution as otherwise contemplated in this Agreement.
(f) Acceptance
Upon completion of the development performed by Sagent in
accordance with Section 5(e) of this Agreement, Sagent shall give written notice
thereof to ADP and shall deliver the Deliverables to ADP for evaluation,
including all documentation and other materials necessary for the proper
utilization by ADP of the Deliverables. ADP shall develop and perform during a
thirty (30) day period following receipt of the Deliverables, such acceptance
tests it may wish to perform to verify that the Deliverables conform to the
specifications. If the Deliverables pass such acceptance tests, ADP shall
deliver to Sagent written notification thereof and the Deliverables shall be
considered accepted. If the Deliverables do not pass such acceptance tests, ADP
shall promptly deliver to Sagent written notification thereof, setting forth in
detail those features of functions that do not substantially conform in all
material respects with the Specifications. Sagent, at its own expense, shall use
reasonable efforts to correct such deficiencies within thirty (30) calendar days
from the date of ADP's deficiency notice, whereupon Sagent shall deliver the
corrected Deliverables to ADP for evaluation. ADP may then perform additional
acceptance tests for a period not to exceed thirty (30) calendar days from the
date Sagent delivered the corrected deliverables to ADP. If the Deliverables, in
ADP's
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reasonable judgment, still do not conform to the Specifications, (a) ADP may
reject the Deliverables or continue the process described in this subsection (f)
until ADP, in its sole discretion, notifies Sagent of acceptance or of rejection
or (2) Sagent may notify ADP of Sagent's decision to discontinue this process.
If ADP does not notify Sagent in writing of acceptance or rejection of the
Deliverables within ninety (90) calendar days of the delivery of the
Deliverables, the Deliverables shall be deemed accepted.
(g) Failure of Acceptance Testing
If ADP rejects the Deliverables pursuant to subsection (f) above,
then neither ADP nor Sagent shall have any further obligation to the other with
regard to the Deliverables.
6. LIMITED WARRANTIES AND INDEMNIFICATION
(a) SAGENT represents and warrants that (i) it has been duly
authorized and has full power to enter into and perform this Agreement; (ii) the
Products and the Deliverables will not to the knowledge of Sagent, after due
inquiry, contain any viruses, locks, time-bombs or other devices (collectively,
"Devices") that will cause any software or hardware used by ADP to be erased, to
become inoperable or incapable of processing, or to otherwise damage or
negatively affect the performance of said software or hardware in any manner,
and to the extent that the Products or the Deliverables shall contain any
Devices, Sagent shall, upon notice by ADP or upon learning of the same, replace
the Products or the Deliverables, as applicable, with Products or Deliverables
containing no Devices; (iii) the execution, delivery and performance of this
Agreement by Sagent will not violate any applicable legal requirement, the
violation of which would result in a material breach by Sagent of its
obligations hereunder, and (iv) during the first ninety (90) days from the date
ADP receives an unmodified Product ("Warranty Period") from SAGENT, the Products
will, under normal use and operating conditions, be free of defects in materials
and workmanship and will substantially conform to the User Documentation and the
specifications set forth in Attachment A hereto.
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS
AGREEMENT, ADP AND ANY END USER ACCEPT THE PRODUCTS "AS IS" WITH
NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. ADP MAKES NO WARRANTIES
REGARDING THE APPLICATION(S) OR SOLUTIONS. ADP WARRANTS THAT THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY ADP WILL
NOT VIOLATE ANY APPLICABLE LEGAL REQUIREMENT, THE VIOLATION OF
WHICH WOULD RESULT IN A MATERIAL BREACH BY ADP OF ITS OBLIGATION
HEREUNDER.
(b) Sagent represents that, as of the date of this Agreement, it
is not currently involved in any litigation (and is not aware of any causes of
action or threatened litigation) relating to infringement by SAGENT of the
intellectual property rights of third parties. SAGENT shall indemnify, defend,
save and hold ADP and its officers, directors, agents, affiliates and employees
harmless from all liability, damages, suits, fines, judgments, losses, claims,
actions, and costs and expenses including attorneys' fees (and other costs and
expenses incidental thereto), incurred by any such person, in connection with
investigating, preparing or defending any such claim relating to or arising (1)
out of any breach of representation or warranty of Sagent in this Agreement; (2)
out of any failure by Sagent in the installation, maintenance or support of
Products, or in training as contemplated in this Agreement; or (3) on account of
any claim or allegation that the Product(s) or the Deliverables, or the use or
distribution thereof as contemplated hereunder, infringe upon any patent,
copyright, trademark or trade secret or other property rights or proprietary
interests of any other party. Upon receipt by a person entitled to
indemnification under this Section 6(b) of actual notice of a claim, action or
proceeding against such person in respect of which indemnity may be sought
hereunder, such person shall promptly notify Sagent with respect thereto. In any
event, failure to so notify Sagent shall not relieve Sagent from any liability
which Sagent may have on account of this indemnity except to the extent that
Sagent shall have been materially prejudiced by such failure, provided that if
such failure shall result in additional expense to Sagent such additional
expense shall not be indemnified hereunder. Sagent shall be entitled to assume,
and if requested by ADP shall assume, the defense of any litigation or
proceeding in respect of which indemnity may be sought hereunder. In any such
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litigation or proceeding the defense of which Sagent has so assumed, ADP (and
any other person entitled to indemnification under this Section 6(b)) shall have
the right to participate in such litigation or proceeding and to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such person. ADP agrees to give Sagent reasonable assistance (at no cost to ADP)
in connection with SAGENT's defense of any such claim. SAGENT will not be
responsible for any settlement it does not approve in writing but if settled
with such approval, SAGENT agrees to indemnify ADP and any such person entitled
to indemnification under this Section 6(b) from and against any loss or
liability by reason of such settlement. In addition to the foregoing
indemnification to be provided by Sagent, in the event that use of the Products
or any part thereof is enjoined, Sagent shall, in the following order of
priority, at its expense and as mutually agreed: (X) procure the right for ADP
and its End Users to continue to use the Products or the affected part thereof;
(Y) replace the Products or the affected portion thereof with other suitable
non-infringing software; or (Z) modify the Products or the affected portion
thereof so as to be non-infringing, without detracting from the overall
performance of the Products. If none of the foregoing remedies set forth in the
immediately preceding sentence are commercially feasible, Sagent shall refund
the aggregate fees paid by ADP for the Products prorated on a three (3) year
basis from the Effective Date. The foregoing obligation of SAGENT does not apply
with respect to Product or portions or components thereof (i) to the extent not
supplied by SAGENT, (ii) to the extent made in whole or in part in accordance to
ADP specifications, if the infringement results from Sagent's conformity with
ADP's specifications, (iii) to the extent modified after shipment by ADP, if the
alleged infringement is caused by such modification, (iv) combined with other
products, processes or materials not approved by SAGENT to the extent the
alleged infringement relates to such combination, (v) where ADP continues
allegedly infringing activity after being notified thereof by Sagent and
provided by Sagent with a non-infringing replacement for the infringing portion
of the Products in accordance with the provisions of subsection (b)(Y) or (b)(Z)
of this Section 6 or (vi) to the extent that ADP's infringement results from the
use by ADP of the Product not strictly in accordance with the License. The
provisions of this Section 6(b) shall survive the termination of this Agreement
until thirty (30) days after the expiration of the applicable statute of
limitations in respect of each applicable cause of action.
(c) Upon SAGENT's breach of Section 6(a)(iv) hereof, SAGENT
shall, in its sole discretion and at its option, provide modifications to keep
the Products in substantial conformance with the Product specifications and the
related User Documentation, or replace the Products. In addition to the
foregoing, Sagent shall provide ADP with such additional support required by ADP
in order that ADP may provide support to its End Users. For purposes of
clarification, the parties agree that the provisions of this Section 6(c) shall
not be in limitation of the provision of Sections 5(b), 9 and 10 hereof.
(d) ADP and SAGENT shall, at their own expense, indemnify,
defend, save and hold harmless each other from and against any claim, loss,
expense, or judgment (including reasonable attorneys' fees) which arises from
misrepresentations made in this Agreement by the other party.
(e) ADP shall, at its expense, indemnify, defend, save and hold
harmless SAGENT from and against any claim, loss, expense, or judgment
(including reasonable attorneys' fees) to the extent the same arises (i) from
any warranties granted in excess of the representations, warranties, covenants
and other agreements made by SAGENT in this Agreement; (ii) the marketing of
Product copies by ADP (except as contemplated whether explicitly or otherwise in
this Agreement); or (iii) infringement by the Application or Solution or any
non-Product related material supplied by ADP of any patent, copyright, trademark
or trade secret of any third party, except to the extent that such infringement
arises from the use of the Product as intended hereunder. Upon receipt by SAGENT
of actual notice of a claim, action or proceeding against SAGENT in respect of
which indemnity may be sought hereunder, SAGENT shall promptly notify ADP with
respect thereto. In any event, failure to so notify ADP shall not relieve ADP
from any liability which ADP may have on account of this indemnity except to the
extent that ADP shall have been materially prejudiced by such failure, provided
that if such failure shall result in additional expense to ADP such additional
expense shall not be indemnified hereunder. ADP shall be entitled to assume, and
if requested by SAGENT shall assume, the defense of any litigation or proceeding
in respect of which indemnity may be sought hereunder. In any such litigation or
proceeding the defense of which ADP has so assumed, SAGENT shall have the right
to participate in such litigation or proceeding and to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of SAGENT.
SAGENT agrees to give ADP reasonable assistance (at no cost to SAGENT) in
connection with ADP's defense of any such claim. ADP will not be responsible for
any settlement it does not approve in writing but if settled with such approval,
ADP agrees to indemnify SAGENT from and against any loss or liability by reason
of such settlement. The provisions of this
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Section 6(e) shall survive until thirty (30) days after the expiration of the
applicable statute of limitations in respect to each cause of action.
(f) Sagent represents and warrants that the Products will (i)
record, store, process and present calendar dates falling on or after January 1,
2000, in the same manner, and with the same functionality, as the Products
store, process and present calendar dates on or before December 31, 1999; (ii)
lose no functionality with respect to the introduction of records containing
dates falling on or after January 1, 2000, and (iii) produce no logical or
arithmetical inconsistency when dealing with dates beyond December 31, 1999.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE HEREIN TO THE CONTRARY, IN NO EVENT
WILL ADP OR SAGENT BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS), EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR SAGENT'S OBLIGATIONS UNDER SECTIONS
6(b) AND 6(d) ABOVE, AND ADP'S OBLIGATIONS UNDER SECTIONS 6(d) AND 6(e) ABOVE,
EACH PARTY'S LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR A CLAIM OF ANY
KIND RELATED TO THIS AGREEMENT OR ANY PRODUCT, WHETHER FOR BREACH OF CONTRACT OR
WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE
AGGREGATE OF FEES PAID TO SAGENT UNDER THIS AGREEMENT.
8. FEES, DISCOUNTS, PAYMENTS, RECORDS, AUDITS
(a) The quantities of Products to be purchased by ADP hereunder,
and the fees to be paid in respect thereof, are as follows:
(i) Minimum guarantee. Subject to the remainder of this
Agreement, ADP agrees to purchase not less than [ * ] ([ * ]) units of
Product during the Initial Term. Of such [ * ] ([ * ]) Products, at
least [ * ] ([ * ]) shall be purchased during the first four quarters of
the Initial Term. During the fifth quarter, ADP shall purchase at least
such number of Products equal to the excess, if any, of [ * ] ([ * ])
over the number of Products purchased during the first four quarters;
and during the sixth quarter of the Initial Term, ADP shall purchase at
least such number of Products equal to the excess, if any, of [ * ]
([ * ]) over the number of Products purchased during the first five
quarters.
(ii) Prices. The prices of Products shall be as follows:
The fee to be paid by ADP for each of the first forty (40) units of
Product (as described in Part I of Schedule B) provided by Sagent to ADP
and subsequently licensed or distributed to an End User is [ * ] Dollars
($[ * ]). This fee represents a [ * ]% discount from the list price for
each Product. After forty (40) units of Product have been purchased by
ADP hereunder, the price of all subsequent units of Product shall be
[ * ] Dollars ($[ * ]) or [ * ] percent ([ * ]%) of the then current
list price of Product, whichever is lower. The fees for the add-on
components specified in Part III of Schedule B, if ADP elects to
purchase same, will be [ * ] percent ([ * ]%) of SAGENT's price for such
components, as set forth in such Part III, or if lower [ * ] percent
([ * ]%) of Sagent's then current list price for such components. SAGENT
shall have the right, in its sole discretion and from time to time upon
sixty (60) days' prior written notice to ADP (but not during the Initial
Term or the first renewal term of this Agreement) to change the prices
on its Price List, to add or delete Products from the Price List or
implement special promotional programs. If ADP has submitted a bid(s) to
potential End User(s) by the date of such written notice, then ADP may
order Product at the previous price to fill such specific bid(s) for a
period of ninety (90) days from the date ADP receives such notice, or
until the price change takes effect, whichever is longer. ADP shall be
responsible for all use taxes, sales taxes, and similar taxes pertaining
to the Products, other than taxes based upon Sagent's income.
(iii) Payments. ADP agrees to pay SAGENT [ * ]
Dollars ($[ * ]) upon the execution of this
Agreement, in full payment for the first forty (40) Products. All
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
11
additional Products licensed by ADP shall be paid within thirty (30)
days of ADP's receipt of SAGENT's invoice for such Product(s).
(b) The parties agree that any license granted by ADP to an End
User which license is terminated within ninety (90) days after being implemented
by ADP may be relicensed by ADP to another End User without the payment of any
additional royalty fee. ADP shall have the right to set the fees it charges to
End Users in its sole discretion.
(c) For each Product copy licensed to an End User by ADP, ADP
shall maintain complete and accurate records (the "Copy Record") indicating by
quarter the Product name and the number of licenses to an End User. Within
thirty (30) business days after the end of each quarter, ADP shall deliver to
SAGENT the Copy Records applicable to that quarter in a report, accompanied by
any additional payment due to SAGENT relating to such Copy Records.
(d) No more than once during the Initial Term, Renewal Term or
any subsequent renewal period, at SAGENT's expense and with sixty (60) days'
prior written notice, SAGENT may audit all records of ADP relating to this
Agreement solely for purposes of determining the accuracy of payments during
ADPs normal business hours. If an audit reveals that the amount which should
have been paid to SAGENT is at least ten percent (10%) more than the amount
reported by ADP, SAGENT's sole and exclusive remedy shall be to have ADP pay the
reasonable cost of the audit to SAGENT. Any shortfall uncovered as a result of
an audit as well as the cost of the audit, if required by the preceding
sentence, shall be paid by ADP to SAGENT within thirty (30) days of the date
SAGENT notifies ADP that an amount is due.
(e) ADP shall pay any amounts owed to SAGENT on the date
specified and according to the terms of this Agreement. If a due date is not
specified, such payment shall be made by ADP within thirty (30) days after ADP's
receipt of SAGENTs invoice. Each party is solely responsible for its own
expenses incurred in the performance of this Agreement. If ADP fails to make any
payment when due, unless ADP has notified SAGENT of its objections to the amount
or basis of such payment, SAGENT may upon fifteen (15) days' advance written
notice suspend delivery of Products or services until the past due payment is
made. Sagent promptly will refund to ADP any overpayments made by ADP.
(f) Payments will be in United States dollars. Any overdue amount
shall bear interest at a rate of eight percent (8%) per annum or the maximum
rate allowed by law if less. Costs of conversion, outside collection and related
bank charges shall be paid by the party owing such payment. ADP shall be
responsible for all taxes, and tariffs assessed by a taxing authority against
ADP related to this Agreement (including any value added or sales taxes) other
than taxes measured by or in relation to SAGENT's income. All shipments by
SAGENT shall be F.O.B. origin. Risk of loss and damage will pass to ADP upon
delivery to ADP.
(g) Discounts do not apply to User Documentation ordered
separately, marketing collateral materials, or other products or services
offered by SAGENT and not mentioned in Schedules A and B. For avoidance of doubt
there will be no fees payable by ADP to SAGENT for End User Documentation
reproduced by ADP pursuant to this Agreement, whether for ADP's own internal use
or for distribution to End Users.
(h) Subsequent to the end of the Term as defined below, discounts
shall be in accordance with SAGENT's standard applicable published discount
schedule in effect at that time or as otherwise negotiated between the parties.
(i) The prices and terms of maintenance and support are as set
forth below. This Section 8(i) shall survive any termination or expiration of
this Agreement pursuant to Section 9 hereof, except that it may be terminated by
Sagent effective upon thirty (30) days' written notice to ADP upon the failure
by ADP to pay the then current MS Fee, unless ADP shall cure such failure within
such notice period.
(A) Provided that ADP shall pay to Sagent the fees described in
this Section 8(i), ADP shall be entitled
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to Basic Maintenance, ▇▇▇▇▇ ▇ Support and Level 2
Support, to be provided to ADP in accordance with the
provisions of Section 5(b) hereof.
(B) The fee for Basic Maintenance, ▇▇▇▇▇ ▇ Support and Level 2
Support (the "MS Fee") for the Initial Term (the first
"Maintenance Term") shall be [*] Dollars ($[*]).
(C) At the end of the first Maintenance Term, and at the end of
each eighteen month period following sequentially thereafter
(each period, a "Maintenance Term"), Sagent shall provide to
ADP an invoice for the MS Fee in respect of the immediately
succeeding Maintenance Term, and ADP shall be entitled to
renewal and continuation of Sagent's obligations under Section
5(b) by payment to Sagent of the applicable MS Fee as provided
herein. However, any such invoice shall comply with the
maximum price provisions set forth herein. No increase in the
MS Fee shall be permitted, except that upon written notice by
Sagent to ADP prior to the final sixty (60) days of any
Maintenance Term, Sagent shall be entitled to increase its MS
Fee for the next succeeding Maintenance Term by no more than
[*] percent ([*]%) above its fee for the then current
Maintenance Term.
(D) The MS Fee for the first Maintenance Term shall be payable as
follows: [*] Dollars ($[*]) shall be payable to Sagent within
thirty (30) days after the execution of this Agreement; and
[*] Dollars ($[*]) shall be payable to Sagent twelve (12)
Months after such initial portion of the first MS Fee is due
and payable. The MS Fee for each subsequent Maintenance Term
shall be payable in two installments in the same manner as
payable in respect of the first Maintenance Term, whereby the
first installment, equal to two-thirds of the applicable MS
Fee, is due at the commencement of any such Maintenance Term,
and the second installment, equal to one-third of the
applicable MS Fee, is due after two thirds of the applicable
Maintenance Term has expired.
(j) In consideration of the training services to be provided to
ADP by SAGENT as outlined in Section 5(c) of this Agreement (the "Training
Services"), ADP agrees to pay $[*]. There is an additional cost of $[*] per
additional trainer enrolled in the SAGENT Train the Trainer program. The fees
for Training Services do not include taxes and/or reasonable travel expenses.
9. TERM AND TERMINATION
(a) The term of this Agreement shall be eighteen (18) months from
the Effective Date ("Initial Term"). At the expiration of the Initial Term, this
Agreement may be automatically renewed by ADP for one additional eighteen (18)
month period (a "Renewal Term") unless ADP provides to SAGENT thirty (30) days'
prior written notice of nonrenewal. During the Renewal Term, the same terms
applicable to the Initial Term shall apply, except that the minimum purchase by
ADP of Products shall be [*] ([*]) Products per [*].
(b) This Agreement may be terminated by either party: (i) upon
breach by the other party of any material term of this Agreement or for failure
to pay any amount when due, upon thirty (30) days' prior written notice by the
non-breaching party to the other, unless the cause is susceptible of being cured
and is cured within the thirty (30) day notice period or such other period
agreed to by both parties; (ii) immediately upon written notice to the other
party in the event the other party breaches Sections 3(i) or 4(a) hereof, (iii)
immediately upon written notice to the other party if a receiver or other
liquidating officer is appointed for substantially all of the assets or business
of the other party, or if such other party makes an assignment for the benefit
of creditors, or becomes insolvent or bankrupt or the rights or interest of such
other party under this Agreement become attached under any bankruptcy,
insolvency or reorganization proceedings. The date termination becomes effective
is called the "Termination Date".
(c) If this Agreement is terminated for any reason, all rights
granted under this Agreement shall terminate, except, as set forth in this
Section 9(c) and in Sections 9(f) and 9(g), and except for ADPs continued
license under Section 3(a), and its right to use Confidential Information for
the sole purpose of fulfilling any existing contractual
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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obligations for Products and services to End Users, and any proposals to
prospective End Users which have been made prior to the effective date of any
such termination, and for the purpose of licensing to prospective End Users any
prepaid Products, the fees in respect of which are not otherwise refundable to
ADP hereunder. Use after the Termination Date shall be subject to all the
restrictions contained herein and those provisions of this Agreement which
survive termination. In addition, without limitation of anything else contained
herein, the provisions of Section 8(i), and, if the MS Fee is paid by ADP as
provided in Section 8(i), Sections 4, 5(b), 6(a)(iv), 6(d) and 10, and this
Section 9, shall survive the termination of this Agreement until the expiration
of the Final Maintenance Term. Upon termination or expiration of this Agreement,
except as otherwise provided herein, ADP will immediately cease to be an
authorized SAGENT VAR and shall refrain from representing itself as such and
from using any SAGENT trademark or trade name. Upon termination of this
Agreement by ADP for Sagent's breach, without limitation of ADP's other rights
and remedies hereunder, Sagent shall immediately refund to ADP any prepayment
for Product not licensed to End Users during the term hereof, and if the
Maintenance Term shall be terminated by such termination of this agreement,
Agent shall refund to ADP a pro rata portion of the MS Fee previously paid by
ADP representing the unexpired portion of the then current Maintenance Term. In
addition, any fees for training services not provided to ADP shall be promptly
refunded to ADP.
(d) Subject to Sections 9(c) and 9(g), within thirty (30) days of
the Termination Date, all Products, Confidential Information of SAGENT and
related materials in ADP's possession or control shall be returned to SAGENT,
or, upon SAGENT's written request, destroyed by ADP. Similarly, subject to
Section 9(c), within thirty (30) days of the Termination Date, all Confidential
Information of ADP and related materials in SAGENT's possession or control shall
be returned to ADP or, upon ADP's written request, destroyed by SAGENT.
(e) On the Termination Date, all outstanding obligations, per the
terms of this Agreement, to pay any amount to SAGENT will become due and payable
within thirty (30) days after such termination or the period otherwise provided
in this Agreement, whichever is earlier.
(f) All sections of this Agreement which by their terms imply an
ongoing obligation shall survive any termination of this Agreement.
(g) Notwithstanding anything to the contrary contained in this
Agreement, it is expressly agreed that the expiration or termination of this
Agreement for any reason shall not terminate or diminish in any way the right of
End Users then using the Solution to use the Products.
10. ESCROW
(a) SAGENT represents and warrants that SAGENT has entered into
an escrow agreement with Filesafe, Inc., d/b/a/ SourceFile ("SourceFile"), a
copy of which is attached as Schedule D ("Escrow Agreement"), and pursuant
thereto SAGENT has placed in escrow with SourceFile, fully annotated source code
of the Product(s). Sagent further covenants that the materials deposited with
SourceFile at all times will constitute a correct set of the source code of the
Products, as well as any corrections, enhancements and other revisions received
by ADP hereunder, or to which ADP becomes entitled under this Agreement
(collectively, the "Source Code"). Sagent further grants to ADP its successors
and assigns a worldwide irrevocable nonexclusive right and license to use,
execute, reproduce, display, perform, and distribute and prepare derivative or
collective works based upon the Source Code for the benefit of End Users who
enter into End User Agreements with ADP as contemplated in this Agreement, such
right and license to be exercisable by ADP solely following a Release Condition
and solely for the purpose of exercising its rights and performing its
obligations as contemplated under this Agreement. SAGENT further covenants to
remain bound to and in compliance with the provisions of the Escrow Agreement
throughout the term of this Agreement and each Maintenance Term, and hereby
waives any defense that the Escrow Agreement is invalid or unenforceable. SAGENT
agrees to the addition of ADP as a beneficiary under the Escrow Agreement,
subject to ADP's sending the fully executed copy of the form of acknowledgment
required by the Escrow Agreement and ADP's payment of the annual fee (which
shall not exceed $250 annually) applicable to a beneficiary's participation in
the Escrow Agreement.
(b) ADP shall be entitled to receive a copy of the Source Code
from escrow in accordance with the terms and conditions of the Escrow Agreement.
In addition to the "Release Conditions" specified and defined in Section
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4(i) of the Escrow Agreement, SAGENT agrees that the following conditions shall
be deemed to constitute a Release Condition:
SAGENT materially breaches the provisions of Section 5(b) as to
maintenance of the Product(s) or Add-On Components;
Without limitation of the foregoing, in the event that Sagent shall for
any reason fail to resolve a Severity Level 1 Problem with a workaround, error
correction or other solution within ten (10) calendar days after the problem has
been reported to Sagent, and with an error correction within one hundred eighty
(180) days after the problem has been reported to Sagent, ADP shall have the
right to terminate this Agreement, and the parties further agree that such
circumstance shall be deemed to be a "Release Condition" under the Escrow
Agreement, entitling ADP to receipt of the Source Code.
In the event of such breach or such failure, or any condition
specified in Section 4(i) of the Escrow Agreement, ADP shall notify SourceFile
of the occurrence of the Release Condition and SAGENT agrees not to issue
"Contrary Instructions" as such term is defined in Section 4(ii) of the Escrow
Agreement, or to prevent in any other way the release of the Source Code to ADP.
SAGENT further agrees in the event of such failure, to instruct SourceFile to:
(i) waive the sixty (60) day waiting period specified in Section 4(iii) of the
Escrow Agreement and (ii) immediately release the Source Code to ADP for
purposes of maintaining and supporting the Products. In furtherance of the
foregoing intentions, Sagent represents and warrants to ADP that Sagent has
delivered to SourceFile a fully executed letter of instructions in the form of
Schedule E hereto (the "Instructions"), and Sagent further covenants that it
shall take no action to revoke, alter, or circumvent the intention of, the
Instructions. In addition, SAGENT hereby grants to ADP the right to contract
with SAGENT's vendors in furtherance of the license described in this Section
10(b). In the event of any dispute between the parties pertaining to a Release
Condition, actual or deemed, the parties agree that the pendency of such dispute
shall not prevent or delay the release to ADP of the Source Code.
11. SPECIAL REPRESENTATIONS
Each party represents and warrants to the other party as follows:
(a) Neither the execution and delivery of this Agreement nor the
performance of any actions required hereunder is being consummated by it with or
as a result of any actual intent by such party to hinder, delay or defraud any
entity to which such party is now or will hereafter become indebted.
(b) Such party does not have any intent (i) to file any voluntary
petition in bankruptcy under any Chapter of the Bankruptcy Code or in any manner
to seek relief, protection, reorganization, liquidation, dissolution or similar
relief for debtors under any local, state, federal, foreign or other insolvency
laws or laws providing for relief of debtors, or in equity, or directly or
indirectly to leave any of its affiliates to file any such petition or to seek
any such relief, or (ii) directly or indirectly to cause any involuntary
petition under any Chapter of the Bankruptcy Code to be filed under such party
of any of its affiliates, or to cause such party or any proceedings pursuant to
local, state, federal, foreign or other insolvency laws or laws providing relief
of debtors or in equity or (iii) directly or indirectly to cause the Products or
the intellectual property that is the subject of the licenses granted hereunder
to become the property of any bankruptcy estate or the subject of any local,
state, Federal, foreign or other bankruptcy dissolution, liquidation or
insolvency proceedings.
12. GENERAL
(a) The parties hereto expressly understand and agree that each
party is an independent contractor in the performance of each and every part of
this Agreement, is solely responsible for all of its employees and agents and
its labor costs and expenses arising in connection therewith. Neither party is
in any manner associated with or otherwise connected with the actual performance
of this Agreement on the part of the other party, nor with the other party's
employment of other persons or incurring of other expenses.
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(b) During the Initial Term and the Renewal Term, if any, Sagent
shall not directly or indirectly sell, lease, license or otherwise distribute or
cause to be distributed the Products to PeopleSoft, Inc., or any affiliate
thereof, or offer, negotiate, or make any solicitation in furtherance of any of
the foregoing acts.
(c) SAGENT has the right at its sole discretion, with sixty (60)
days' advance notice to ADP, to make non-material changes or improvements or
enhancements in the design or specifications of the Products at any time. Sagent
promptly shall provide to ADP all upgraded products with all such changes,
improvements or enhancements, and shall provide to ADP such additional training,
support and other assistance as shall be reasonably requested by ADP to adapt
any Application to such changes, improvements, or enhancements, or to train its
or its customers' employees in connection therewith. SAGENT shall provide to ADP
thirty (30) days' notice prior to any such proposed Product change. If ADP
determines that any such change, improvement or enhancement may have an adverse
effect upon a Solution, ADP at its election and upon notice to SAGENT, shall be
entitled to continue, until SAGENT receives written notice from ADP to the
contrary, to receive, use, license and distribute hereunder the Product without
such change, improvement or enhancement, and SAGENT shall continue Basic
Maintenance, Level 1 Support and Level 2 Support for such Product as elected by
ADP.
(d) This Agreement may not be assigned by either party without
the prior written consent of the other party, which shall not be unreasonably
withheld, except that ADP may assign this Agreement, without Sagent's consent,
to any direct or indirect wholly owned subsidiary of AUTOMATIC DATA PROCESSING,
INC., and SAGENT may assign this Agreement in connection with its merger or the
sale of substantially all of the assets of SAGENT, provided that SAGENT or ADP,
as applicable, shall in the event of any such assignment remain liable as
guarantor of all of such party's obligations hereunder. Any purported assignment
in contravention of this section is null and void. Notwithstanding the foregoing
this Agreement shall bind and inure to the benefit of any successors or
permitted assigns. This Agreement is for the benefit of the parties hereto and
their respective successors and permitted assigns as described herein, and such
third party beneficiaries as are enumerated in the provisions of Section 6
hereof.
(e) Neither party will be responsible for failure of performance,
other than for any obligation to pay money, due to causes beyond its reasonable
control, including without limitation, acts of God or nature; labor disputes;
sovereign acts of any federal, state or foreign government; or shortage of
materials.
(f) Notices will be delivered to a party's address to the
following individuals outlined below, stated in the signature block of this
Agreement, or to another address which a party properly notified the other that
notices should be sent. In addition, any notice to ADP shall include a duplicate
copy to each of ADP, National Accounts Division, Attention: Division President,
and ADP, National Accounts Division, Attention: Division Counsel, at the
following address until July 21, 1997: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
and after July 21, 1997 at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(g) This Agreement, including all attachments, exhibits and
appendices, is the complete and exclusive statement of the parties to this
Agreement on these subjects, and supersedes all prior written or oral proposals
and understandings relating thereto. Except as otherwise provided, this
Agreement may only be modified by a writing signed by an authorized officer of
each of the parties. This Agreement takes precedence over any purchase order
issued by ADP, which is accepted by SAGENT for administrative convenience only.
If any court of competent jurisdiction determines that any provision of this
Agreement is invalid, the remainder of the Agreement will continue in full force
and effect. The offending provision shall be interpreted to whatever extent
possible to give effect to its stated intent.
(h) Failure to require performance of any provisions or waiver of
a breach of a provision does not waive a party's right to subsequently require
full and proper performance of that provision. Singular terms will be construed
as plural, and vice versa. Section headings are for convenience only and will
not be considered part of this Agreement.
(i) This Agreement is governed by the laws of the State of
California without giving effect to its conflict of law provisions. The United
Nations Convention on Contracts for the International Sales of Goods will not
apply to this Agreement. Either party may seek to enforce or prevent a breach of
any term of this Agreement in the
15
16
appropriate courts of any state or country in which the Products are deployed by
ADP or in which ADP maintains an office. Nothing in this Agreement will be
deemed a waiver by either party of any and all available legal or equitable
remedies.
(j) Upon execution of this Agreement, ADP will be provided a
position on Sagent's advisory council ("Advisory Council"). The Advisory Council
meets at least once a Quarter in Palo Alto. ADP, at its option and discretion,
shall designate a representative as an Advisory Council member.
(k) SAGENT agrees to procure and maintain, beginning on the date
hereof and continuing throughout the term of this Agreement including any
Renewal Terms, and throughout all Maintenance Terms, a comprehensive general
liability insurance policy with an insurance company of national recognition
having a Best's rating of B+ or better in an amount of not less than $4,000,000
in the aggregate and $1,000,000 per occurrence and covering its obligations set
forth in Section 6(b) hereof; and to cause ADP to be an additional insured under
such policy. Within five (5) days after the execution hereof Sagent shall
deliver to ADP a certificate evidencing such coverage and such status of ADP.
The certificate shall provide thirty (30) days' advance written notice of
cancellation, non-renewal or termination be given to ADP.
(l) Except as specifically provided herein, neither party may use
the name, trademarks, service marks and/or logos of the other without such
party's prior written consent in each instance (which shall be at each party's
sole discretion). Without the prior written consent of the other party hereto,
which consent shall not be unreasonably withheld, neither party shall make any
news release, public announcements, denial or confirmation of this Agreement or
its subject matter or advertise any facts relating to this Agreement. The
foregoing restriction shall not apply to the extent such restriction is
inconsistent with the requirements of any law, rule, regulation or other legal
requirement, or the requirements of any national securities exchange or similar
trading system applicable to the party proposing to make such disclosure. The
parties shall use reasonable efforts to participate in joint press releases and
promotional activities regarding the ADP/Sagent relationship contemplated in
this Agreement. Each party shall bear responsibility for the cost of their
respective press releases and promotional activities, unless otherwise mutually
agreed. Each party shall submit to the other for prior written approval by an
authorized representative, which approval shall not be unreasonably withheld,
any joint press release or promotional literature which identifies the other
party and/or uses the other party's name, trademark(s), service ▇▇▇▇(s) and/or
logo(s), which approval shall not be unreasonably withheld the case of proposed
press releases; provided, however, that each party shall have sole discretion to
refuse the use by the other party of any of its trademarks, trade names, service
marks and/or logos.
(m) The headings in this Agreement are intended for convenience
of reference and shall not affect its interpretation. Any reference herein to a
Section or an Exhibit or an Attachment or a Schedule shall be deemed to refer to
the applicable Section or Exhibit or Attachment or Schedule to this Agreement.
16
17
(n) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which, taken together,
shall constitute one Agreement.
SAGENT TECHNOLOGY, INC. ADP, INC.
By: By:
Name: Name:
Title: Title:
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
17
18
SCHEDULE A
VALUE ADDED RESELLER LICENSED PRODUCTS
Software List of Products
The Sagent Data Mart Solution consist of the following integrated family of
products, more fully described in Attachment A:
Base Package Software Solution (One Full Set)
Data Mart Server (1)
Design Studio (1)
Information Studio (10)
Weblink Server (1)
Admin (1)
Sagent Analysis (10)
Reporting Tool (Either CrystalReport's or Sagent's) (10)
19
SCHEDULE B
Discount Schedule
I. The Product consists of:
Data Mart Server (1)
Design Studio (1)
Information Studio (10)
WebLink Server (1)
Admin Tool (1)
Sagent Analysis (10)
Report Tool (either CrystalReport's or Sagent's) (10)
The list price for the Product is $[*]. SAGENT agrees to give ADP a [*]%
discount off the list price for each Product purchased during the Initial Term
of this Agreement, which results in a list price of $[*] for each Product.
II. The price per Product (including user documentation) for ADP's internal
use only is $[*] per Product.
III. ADD ON COMPONENTS SOLD TO EXISTING CUSTOMERS (i.e., CUSTOMERS WHO HAVE
PURCHASED THE PRODUCT IDENTIFIED IN I., ABOVE):
List Price
----------
Data Mart Server (1)..................... $ [*]
Weblink Server (1)....................... $ [*]
Information Studios (Sets of 5).......... $ [*]
Analysis Tools (Set of 5)................ $ [*]
Reporting Tools (Set of 5)............... $ [*]
Design Studio's (1)...................... $ [*]
Admin Tool (1)........................... $ [*]
DISCOUNT SCHEDULE: The price to ADP during the Initial Term of this Agreement
for purchases of add-on components will be [*]% of the prices shown on the Price
List.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
20
SCHEDULE C
Support & Professional/Technical Services Pricing/Fees
Support Services
In addition to the Services described below, Sagent shall provide its Premium
Support as described elsewhere in this Exhibit C.
Support Services will include telephone support, in which we will answer
technical questions from Two (2) designated persons about the installation and
use of Products; Maintenance Releases, in which we will provide our copyrighted
in-line releases and workarounds as available; Upgrades, in which we will
provide new product releases (signified by a change in the version number) as
substitutes for Products; and other generally available Technical Materials.
Note that Maintenance Releases and Upgrades, where applicable, may not be used
to increase the total number of copies of the Products. After upgrade or
maintenance this agreement will only apply to the upgraded or maintained
versions of a Products provided that ADP shall have continued support for the
prior version for up to 24 months as required by ADP; you agree to destroy or
archive (but not use or transfer) the prior version within 24 months ADP and its
clients may need some time to move to a new release upgrade, etc.
TECHNICAL SUPPORT SERVICES
The Professional Support program is designed to give you access to Sagent
Technology's Technical Support Analysts. These analysts are available to insure
the continued operation of your Sagent product. This includes working with a
Sagent system that has gone down, assisting with the initial setup of new
systems, and other problems that arise form the use of our products. Technical
Support Services does not include the development of custom code, or detailed
product training.
DESIGNATED PROFESSIONAL SUPPORT CONTACTS
Maintaining a clear line of communication between your organization and Sagent's
Technical Support department is key to making sure you get the most from the
Professional Support program. As such, it is important that you designate
specific individuals within your organization that become the primary contacts
for working with Sagent Technical Support. These individuals, who are familiar
with the technical workings of your company's systems, help by managing the flow
of information to the Support Analysts to insure that responses are focused on
the problem at hand. The number of contacts within your organization that have
access to Sagent Technical Support is specified in this agreement, and is
determined by you based on your need.
WORKING WITH TECHNICAL SUPPORT
Sagent Technical Support tracks your issues based on an incident model. While we
do not limit you to a specific number of incidents, we do use incidents to make
sure that each issue that you have is resolved to the best of our ability. An
incident is defined as a single support issue that cannot be broken down into
smaller support issues. Each of these incidents is tracked individually, and can
be referenced by you when you contact us.
CONTACTING SAGENT TECHNICAL SUPPORT BY PHONE
Use the phone to contact Sagent Technical Support whenever you have a
time-critical or business-critical problem. Sagent Technical Support is
available to Premium Support Customers twenty-four (24) hours a day, seven (7)
days a week. During regular business hours, Premium Support Customers are given
priority in the phone queue. If we are unable to answer your call immediately,
you will be given the option to leave a voice mail message. Telephone calls
placed outside regular business hours automatically go to voice mail, and a
designated support analyst is paged. In the message, please be sure to give us
your name, company name, a description of the problem, and a phone number that
you can be reached at. All calls that go to voice mail will be responded to
within two business hours. If we fail to connect with you on the return call, we
will leave a message (if possible) with an appropriate time to follow up.
21
CONTACTING SAGENT TECHNICAL SUPPORT BY ELECTRONIC MAIL
For problems that are not time-critical, you can contact us via the Internet at
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇. We will respond to all mail messages within one
business day of the time it arrives at Sagent Technical Support. Please be sure
to include a full description of the problem, your name, your company's name,
and a return e-mail address.
ESCALATION PROCESS
Step 1 - All new technical support issues are handled initially by our
support analysts. Our support analysts are trained to deal with the
majority of all support issues, and most support issues are resolved
at this step. All problems will be acknowledged within two (2)
business hours.
Step 2 - If an issue comes up that cannot be handled by the support analyst,
it is given one of the following priorities:
A) Severity 1 - For business outages, or issues, that have
a serious impact on ADP or an End User which threatens
future productivity.
B) Severity 2 - For issues that do not have a significant
current impact on customer productivity of ADP or an
End User.
Step 3 - Severity 1 issues are immediately escalated to Sagent's upper
management team to determine the proper course of action. Sagent
shall take all necessary and desirable steps to resolve such issues
with an error correction, a workaround or another solution within
one business day.
Severity 2 issues are escalated to an escalation review committee,
which meets regularly to determine the proper course of action for
these escalations. Sagent shall take all necessary and desirable
steps to resolve and issues with an error correction, a workaround
or another solution.
Step 4 - The course of action determined in Step 3 is communicated to ADP,
and an estimated time to complete is given.
Step 5 - If Sagent has not delivered an error correction, but has delivered a
workaround acceptable to ADP, for a suspected error within the times
contemplated in this Agreement, Sagent shall provide, within
twenty-four (24) hours after ADP's request, a written analysis of
the problem and a written plan to supply ADP with an error
correction within thirty (30) calendar days. The foregoing remedies
are in addition to and not lieu of all other remedies available to
ADP under the Agreement.
PREMIUM SUPPORT PROGRAM
Sagent Premium Support is provided for our customers that require more security
when implementing Sagent's products in mission critical environments. In order
to provide this security, the Premium Support Program provides round the clock
access to Sagent Technical Support team via the phone, as well as electronic
support via the Internet. Sagent's Premium Support Program also includes an
escalation process that is designed to make sure technical issues receive the
proper attention.
This reference guide is an outline to the services currently available under the
Premium Support program. Use this guide to determine the best way to get the
most from this service.
TECHNICAL SUPPORT SERVICES
22
The Professional Support Program is designed to give you access to Sagent
Technology's Technical Support Analysts twenty-four (24) hours a day, seven (7)
days a week. These analysts are available to insure the continued operation of
your Sagent product. This includes working with a Sagent system that has gone
down, assisting with the initial setup of new systems, that arise from the use
of our products. Technical Support Services does not include the development of
custom code, or detailed product training.
23
SCHEDULE D
[ESCROW AGREEMENT]
TERMS AND CONDITIONS OF ESCROW ACCOUNT
SourceFlex
Software Escrow Agreement
Developer [Sagent Technology, Inc.] SourceFile
This contract is a two-party agreement between SourceFile and Sagent Technology,
Inc. End-users may sign on to this agreement as they license the technology from
the Sagent. The SourceFlex contract provides the opportunity to serve all
licensees of a particular Software Developer for one or more systems.
24
SOURCEFLEX
SOFTWARE SOURCE CODE ESCROW AGREEMENT
SOURCEFILE NUMBER: 7446
This Software Source Code Escrow Agreement, dated as of January 6, 1997
by and between FileSafe, Inc., a California corporation, doing business as
SourceFile ("SourceFile") located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ and Sagent Technology, Inc., located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ ("Sagent"), and each Beneficiary identified by Depositor to SourceFile as
provided for in Paragraph 3 hereof (each a "Beneficiary", collectively the
"Beneficiaries").
RECITALS:
A. Pursuant to certain software license agreements (each a "License
Agreement", collectively the "License Agreement"), Depositor licenses to certain
licensees certain software in object code form (the "Software"). A description
of each Software effective as of the date hereof, is attached hereto as Exhibit
"A".
B. The Software is the proprietary and confidential information of
Depositor, and Depositor desires to protect such ownership and confidentiality.
C. Depositor desires to ensure the availability to its Beneficiaries of
the source code and all necessary proprietary information related to the
Software (the "Source Material") in the event certain conditions set forth in
Paragraph 4 of this Agreement should occur.
AGREEMENT:
1. Delivery of Source Material to SourceFile. Upon execution of this
agreement, Depositor shall deliver to SourceFile a parcel (the "Parcel") sealed
by Depositor, which Depositor represents and warrants contains the Source
Material. SourceFile has no knowledge of, and makes no representations with
respect to, the contents or substance of the Parcel, the Software or the Source
Material. Depositor shall send to SourceFile a duplicate of the Source Material
within three (3) days after receiving written notice from SourceFile that the
Source Material has been destroyed or damaged. All supplements shall be subject
to the terms and provisions of this Agreement.
2. Acknowledgement of Receipt by SourceFile. SourceFile shall promptly
acknowledge to Depositor and to Beneficiary the receipt of the Parcel and any
supplements to the Source Material which are added to the Parcel. Depositor
shall provide supplements to the Source Material for each version of the
Software. All such supplements shall be subject to the terms and provisions of
this Agreement. SourceFile will notify Beneficiary and Depositor of each update
to the Source Material. Such notification will be sent via certified mail,
return receipt required. SourceFile will provide an account status report to the
Beneficiary and Depositor on a semiannual basis.
3. Acknowledgement by Beneficiaries. For purposes of this Agreement, a
licensee of the Software under a fully executed License Agreement, shall be a
Beneficiary hereunder with such rights of a Beneficiary as set forth herein,
only if (i) such licensee has sent to SourceFile a fully executed copy of the
form of acknowledgement attached hereto as Exhibit "B", in which such licensee
accepts the terms of this Agreement and (ii) all fees are paid. The names and
addresses of the Beneficiaries shall be described in one or more schedules of
Beneficiaries. A schedule of Beneficiaries effective as of the date of this
Agreement is attached hereto as Exhibit "C". All other licensees of the Software
shall have no rights hereunder and SourceFile shall have no duties to such
licensees.
25
4. Terms and Conditions of the Source Material Escrow. The Parcel shall
be held by SourceFile upon the following terms and conditions:
(i) Beneficiary's right to possession of the Source Code is
subject to Beneficiary's execution of a registration document
with SourceFile and payment to Sagent of an annual fee for
Beneficiary's participation in such escrow account. Such
registration document shall provide Beneficiary access to the
Source Code, the right to use and modify the Source Code
solely to maintain and support Beneficiary's current and
future customers of the Licensed Material and the right to
produce object code copies of the modified Licensed Material
as part of Beneficiary's applications for use in accordance
with the terms of the Agreement, subject to the following
conditions: (a) Beneficiary is in compliance with the terms of
the Agreement; (b) Beneficiary has a valid license to the
Licensed Material; and (c) Beneficiary has a valid maintenance
agreement with Sagent for support of the Licensed Material,
and either (1) A petition in bankruptcy has been filed in
Sagent's name, whether voluntarily or involuntarily, and such
petition is not withdrawn within 90 days of such filing or (2)
pursuant to Sagent's obligations under a valid maintenance
agreement with Beneficiary, Sagent has consistently and
repeatedly failed or refused to correct a catastrophic error
or numerous individual errors in the License Materials which
render the licensed materials commercially unusable. Provided
that the above conditions exist, and Beneficiary has given
Depositor written notice of such breach which was not cured
within 60 days (the Release Condition), then SourceFile shall
follow the following procedures set forth in this Section 4,
parts (ii), (iii), (iv) and (v).
(ii) SourceFile shall promptly notify Depositor of the occurrence
of the Release Condition and shall provide to Depositor a copy
of Beneficiary's notice to SourceFile.
(iii) If SourceFile does not receive Contrary Instructions, as
defined below, from Depositor within sixty (60) days following
SourceFile's delivery of a copy of such notice to Depositor,
SourceFile shall deliver a copy of the Source Material to
Beneficiary. "Contrary Instructions" for the purposes of this
Section 4 shall mean the filing of written notice with
SourceFile by Depositor, with a copy to the Beneficiary
demanding delivery, stating that the Release Condition has not
occurred or has been cured.
(iv) If SourceFile receives Contrary Instructions from Depositor
within sixty (60) days of the giving of such notice to
Depositor, SourceFile shall not deliver a copy of the Source
Material to the Beneficiary, but shall continue to store the
Parcel until: (1) otherwise directed by the Depositor and
Beneficiary jointly; (2) SourceFile has received a copy of an
order of a court of competent jurisdiction directing
SourceFile as to the disposition of the Source Material; or
(3) SourceFile has deposited the Parcel with a court of
competent jurisdiction or a Trustee or receiver selected by
such court pursuant to this Section 4, part (v) below.
(v) Upon receipt of Contrary Instructions from Depositor,
SourceFile shall have the absolute right, at SourceFile's
election, to file an action in interpleader requiring the
Depositor and Beneficiary to answer and litigate their several
claims and rights amongst themselves. SourceFile is hereby
authorized to comply with the applicable interpleader statutes
of the State of California in this regard.
5. Term of Agreement. This Agreement shall have an initial term of three
(3) years. The term shall be automatically renewed on a yearly basis thereafter,
unless Depositor, Beneficiary, or SourceFile notifies the other parties in
writing at least forty-five (45) days prior to the end of the then current term
of its intention to terminate this Agreement.
26
6. Compensation of SourceFile. Depositor or Beneficiary agree to pay
SourceFile reasonable compensation for the services to be rendered hereunder in
accordance with SourceFile's then current schedule of fees, except that any fees
associated with Escrow Release Requests and Technical Review/Verification
Requests initiated by a Beneficiary must be paid by that Beneficiary in
accordance with SourceFile's then current schedule of fees. Depositor or
Beneficiary will pay or reimburse SourceFile upon request for all reasonable
expenses, disbursements and advances, including software duplication charges,
incurred or made by it in connection with carrying out its duties hereunder.
7. Limitation of Duties of SourceFile. SourceFile undertakes to perform
only such duties as are expressly set forth herein.
8. Limitation of Liability of SourceFile. SourceFile may rely on and
shall suffer no liability as a result of acting or refraining from acting upon
any written notice, instruction or request furnished to SourceFile hereunder
which is reasonably believed by SourceFile to be genuine and to have been signed
or presented by a person reasonably believed by SourceFile to be authorized to
act on behalf of the parties hereto. SourceFile shall not be liable for any
action taken by it in good faith and believed by it to be authorized or within
the rights or powers conferred upon it by this Agreement. SourceFile may consult
with counsel of its own choice, and shall have full and complete authorization
and protection for any action taken or suffered by it hereunder in good faith
and in accordance with the opinion of such counsel.
9. Indemnification of SourceFile. SourceFile shall be responsible to
perform its obligations under this agreement and to act in a reasonable and
prudent manner with regard to this escrow arrangement. Provided that SourceFile
has acted in the manner stated in the previous sentence, Depositor and
Beneficiary each agree to indemnify, defend, and hold harmless SourceFile and
its agents and employees (collectively, "SourceFile") from any and all claims,
demands, liability, costs and expenses (including attorneys' fees) incurred by
SourceFile directly or indirectly arising from or relating to the Source
Material and/or SourceFile's performance of its duties under this Agreement.
10. Record Keeping and Inspection of Software. SourceFile shall maintain
complete written records of all materials deposited by Depositor pursuant to
this Agreement. During the term of this Agreement, Depositor shall be entitled
at reasonable times during normal business hours and upon reasonable notice to
SourceFile to inspect the records of SourceFile maintained pursuant to this
Agreement and to inspect the facilities of SourceFile and the physical condition
of the Source Material.
11. Technical Verification. Beneficiary reserves the option to request
SourceFile to verify the Source Material for completeness and accuracy. At
Beneficiary's expense, SourceFile may elect to perform the verification at its
site or at the Depositors site. Depositor agrees the reasonably cooperate with
SourceFile in the verification process by providing its facilities and computer
systems and by permitting SourceFile and at least one employee of Beneficiary to
be present during the verification of Source Material.
12. Restriction on Access to Source Material. SourceFile shall maintain
the Source Materials in a secure, environmentally safe, locked receptacle which
is accessible only to authorized SourceFile employees. SourceFile shall not
disclose the contents of this Agreement to any third party. If SourceFile
receives a subpoena or other order of a court or other judicial tribunal
pertaining to the disclosure or release of the Source Materials, SourceFile will
immediately notify Depositor. Except as required to carry out its duties
hereunder, SourceFile shall not permit any SourceFile employee, Beneficiary or
any other person access to the Source Material except as expressly provided
herein, unless consented to in writing by Depositor. SourceFile shall use its
best efforts to avoid unauthorized access to the Source Material by its
employees or any other person.
27
13. Bankruptcy. Depositor and Beneficiary acknowledge that this
Agreement is an "agreement supplementary to" the License Agreement as provided
in Section 365(n) of Title 11, United State Code (the "Bankruptcy Code").
Depositor acknowledges that if Depositor, as a debtor in possession or a trustee
in Bankruptcy in a case under the Bankruptcy Code, rejects the License Agreement
or this Agreement, Beneficiary may elect to retain its rights under the License
Agreement and this Agreement as provided in Section 365(n) of the Bankruptcy
Code. Upon written request of Beneficiary to Depositor or the Bankruptcy
Trustee, Depositor or such Bankruptcy Trustee shall not interfere with the
rights of Beneficiary as provided in the License Agreement and this Agreement,
including the right to obtain the Source Material from SourceFile as permitted
hereunder.
14. Notices.
(i) Any notice or other communication required or permitted under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date service is served personally, sent by overnight courier, or five (5)
days after the date of mailing if sent registered mail, postage prepaid, return
receipt required, and addressed as follows or to such other address or facsimile
number as either party may, from time to time, designate in a written notice
given in like manner:
TO DEPOSITOR: Sagent Technology, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TO SOURCEFILE: SourceFile
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: Client Services
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) Deposit update notices and invoices will be sent to parties
listed in Exhibit "D" and "E".
TO BENEFICIARY: As set forth in Exhibit "C" Schedule of Beneficiaries.
15. Miscellaneous Provisions.
(a) Waiver. Any term of this Agreement may be waived by the party
entitled to the benefits thereof, provided that any such waiver must be in
writing and signed by the party against whom the enforcement of the waiver is
sought. No waiver of any condition, or of the breach of any provision of this
Agreement, in any one or more instances, shall be deemed to be a further or
continuing waiver of such condition or breach. Delay or failure to exercise any
right or remedy shall not be deemed the waiver of that right or remedy.
(b) Modification or Amendment. Any modification or amendment of any
provision of this Agreement must be in writing, signed by the parties hereto and
dated subsequent to the date hereof.
(c) Governing Law Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of California. All
disputes arising out of or related to this Agreement shall be subject to the
exclusive jurisdiction and venue of the State and Federal courts of Santa ▇▇▇▇▇
County, California.
(d) Headings; Severability. The headings appearing at the beginning
of the sections contained in this Agreement have been inserted for
identification and reference purposes only and shall not be used to determine
the
28
construction or interpretation of this Agreement. If any provision of this
Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
(e) Further Assurances. The parties agree to perform all acts and
execute all supplementary instruments or documents which may be reasonably
necessary to carry out the provisions of this Agreement.
(f) Entire Agreement. This Agreement, including the attachments
hereto, contains the entire understanding between the parties and supersedes all
previous communications, representations and contracts, oral or written, between
the parties, with respect to the subject matter thereof. It is agreed and
understood that this document and agreement shall be the whole and only
agreement between the parties hereto with regard to these escrow instructions
and the obligations of SourceFile herein in connection with this Agreement, and
shall supersede and cancel any prior instructions. SourceFile is specifically
directed to follow these instructions only and SourceFile shall have no
responsibility to follow the terms of any prior agreements or oral
understandings.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
DEPOSITOR SOURCEFILE
Sagent Technology, Inc. FileSafe, Inc.,
a California corporation a California corporation
By: By:
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Name: ▇▇▇ ▇▇▇▇▇▇▇ Name:
------------------------
Title: Chief Executive Officer Title:
-----------------------
